Bites (noun): more meaty news to sink your teeth into.
Barks (noun): peripheral noise worth your attention.
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This week in Other Barks & Bites: Merck enters into a $6.7 billion agreement to purchase Terns Pharma to improve its pipeline of experimental cancer therapies; the Federal Circuit says that common law principles prevented Ascendis Pharma from obtaining a mandatory stay in a second lawsuit including the same claims as a first complaint that was voluntarily dismissed; U.S. District Judge Tonya Walton Pratt finds the NCAA did not prove the irreparable harm required to issue a temporary restraining order against DraftKings’ use of March Madness trademarks; the EU’s highest court rules that the inclusion of a year in a trademark registration evoking a fictitious heritage may be deceptive as to the long-standing know-how of that trademark owner under EU law; Sony Music Entertainment and USC reach a settlement over the unauthorized use of music in USC social media posts; the U.S. Supreme Court overturns the $1 billion verdict for contributory liability on copyright infringement issued against Cox Communications; and the European Patent Office announces that 2025 was the first year in which EU patent application filings surpassed 200,000.
Bites
CJEU Says Trademarks Evoking Fictitious Heritage May Be Deceptive – On Thursday, March 26, the Court of Justice for the European Union (CJEU) held that a trademark is liable to be deceptive under EU law where it includes a year indicative of when the brand was established, thus evoking long-standing know-how bestowing a quality guarantee on goods for which the mark is registered, even though such know-how doesn’t exist. The ruling was issued to answer a question referred by France’s highest national court in a trademark case between luxury leather goods makers Goyard ST-Honoré and Fauré Le Page Paris, the latter of which was founded in 2009 but registered an EU trademark for “Fauré Le Page Paris 1717” indicating the year that the historic Maison Fauré Le Page, which ceased trading in 1992, was founded.
CAFC Affirms Denial of Mandatory Stay Following Voluntary Dismissal and Refiling – On Thursday, March 26, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Ascendis Pharma A/S v. Biomarin Pharmaceutical Inc. affirming the Northern District of California’s denial of a mandatory stay sought by plaintiff Ascendis Pharma in a declaratory action for non-infringement pending the outcome of parallel proceedings between Ascendis and patent owner Biomarin at the U.S. International Trade Commission (USITC). The Federal Circuit held that common law principles prevented Ascendis from claiming the right to a mandatory stay under 28 U.S.C. § 1659(a)(2), which allows a party to an action at the USITC to stay district court proceedings within 30 days of filing in district court, because Ascendis had previously filed a complaint seeking the same declaratory judgment relief which it then voluntarily dismissed in order to refile and seek the mandatory stay within the statutory timeline for the second complaint.
SCOTUS Says Encouragement, Facilitation Are Required for Contributory Copyright Infringement – On Wednesday, March 25, the U.S. Supreme Court issued its ruling in Cox Communications, Inc. v. Sony Music Entertainment reversing the U.S. Court of Appeals for the Fourth Circuit, which had affirmed rulings that Internet services provider (ISP) Cox Communications was contributorily liable for copyright infringement committed by subscribers who illegally uploaded or downloaded copyrighted music content. In a 7-2 decision authored by Justice Clarence Thomas, the nation’s highest court found that a copyright plaintiff must provide evidence that the defendant induced infringement through encouragement, or designed a service specifically tailored to enable infringing conduct, not simply that they had knowledge of ongoing infringement. Concurring in the judgment, Justices Sonia Sotomayor and Ketanji Brown Jackson argued that the majority’s ruling unnecessarily limited secondary liability in the copyright context as Court precedent leaves open the possibility of common law theories like aiding and abetting.
House IP Subcommittee Presses USPTO’s Squires on PTAB NPRM, Trump’s Influence – On Wednesday, March 25, the U.S. House of Representatives Judiciary Committee’s Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet held an oversight hearing of the U.S. Patent and Trademark Office, the agency’s first such hearing under Director John Squires. During the hearing, several subcommittee members raised concerns over reforms to the Patent Trial and Appeal Board (PTAB), with Subcommittee Chairman Darrell Issa (R-CA) voicing interest in pursuing legislative solutions that reduce Director discretion. Several lawmakers also raised concerns about undue influence at the USPTO from President Donald Trump, with the full committee’s Ranking Member Jamie Raskin (D-MD) in particular grilling Director Squires on his role in filing and maintaining trademark applications for the unincorporated Board of Peace organization recently announced by President Trump.
EPO Announces Record Number of Patent Applications in 2025 Boosted by Computer Technologies – On Tuesday, March 24, the European Patent Office (EPO) announced that European patent applications reached a record number of filings during 2025, eclipsing 200,000 filings at the EPO for patent rights within the EU for the first time and increasing 1.4% over the total number of EU patent applications filed in 2024. According to the EPO’s statistics, EU patent filings in 2025 were bolstered by a 6.1% increase in applications filed to protect computer technologies, which was the largest sector for patent applications in the 2024 study, with growing numbers of filings in digital communication (+11.4%) and electrical machinery, apparatus and energy (+5.3%) also contributing to the record number of filings seen last year.
Pro Codes Act Reintroduced to Maintain Copyright Protection, Public Accessibility of Standards – On Friday, March 20, the Protecting and Enhancing Public Access to Codes (Pro Codes) Act was reintroduced into the U.S. Senate by a bipartisan group of co-sponsors including Senators Chris Coons (D-DE), John Cornyn (R-TX), Mazie Hirono (D-HI) and Thom Tillis (R-NC), which if enacted would preserve copyright protection for safety standards developed by non-profit organizations to ensure they can raise money by selling copies of their standards provided that a copy of the standard is made publicly accessible online. Raising opposition to the bill was copyright advocacy coalition Re:Create, which issued a press release arguing that the Pro Codes Act has constitutional flaws and would restrict first responder access to safety standards.
Barks
Judge Pratt Nixes TRO Motion By NCAA To Stop DraftKings Use of Tournament Trademarks – On Thursday, March 26, U.S. District Judge Tonya Walton Pratt of the Southern District of Indiana filed an order denying the National Collegiate Athletics Association’s (NCAA) motion for temporary restraining order (TRO) after finding that the NCAA did not show irreparable harm stemming from the use of “March Madness,” “Sweet Sixteen” and other trademarks associated with its men’s and women’s college basketball tournaments by online gambling platform DraftKings.
Copyright Office Seeks Public Input on Alternative Fee Structures for ECS Registration – On Thursday, March 26, the U.S. Copyright Office issued a notice of inquiry seeking public input on potential alternative fee structures that the agency could incorporate as part of the Enterprise Copyright System (ECS) Registration component currently being implemented, with public comments on the topic being accepted by the agency through June 24.
Sen. Grassley Touts Anti-Counterfeiting Bills at Congressional Trademark Caucus Event – On Wednesday, March 25, Senator Chuck Grassley (R-IA), Chairman of the Senate Judiciary Committee and Co-Chair of the Congressional Trademark Caucus, gave public remarks at a congressional briefing about counterfeits in sports merchandise, noting his work on supporting both the introduction of a bill allowing U.S. Customs and Border Protection officials to share information about counterfeit shipments with IP owners as well as the INFORM Consumers Act taking effect in 2023.
Sony Tells Judge Woods That Settlement Has Been Reached in USC Social Media Copyright Case – On Wednesday, March 25, counsel representing Sony Music Entertainment and other plaintiffs in a copyright case filed against the University of Southern California (USC) in the Southern District of New York sent a letter to U.S. District Judge Gregory Woods informing him that a settlement had been reached extinguishing Sony’s claims that USC made unauthorized use of more than 170 songs in social media posts.
EPO Select Committee Reports 86K Requests for Unitary Patents, 28.7% Uptake Rate in 2025 – On Wednesday, March 25, the EPO announced updated figures on the United Patent system presented to the Select Committee of the EPO’s Administrative Council, showing more than 86,000 total requests for European patents with unitary effect and an increase in the unitary patent uptake rate up to 28.7% of all European patent applications filed in 2025.
Caterpillar Files Counterclaims Over Earthmoving Patents Against Doosan Bobcat – On Tuesday, March 24, Texas-based heavy equipment manufacturer Caterpillar filed counterclaims of patent infringement in an Eastern District of Texas case filed last December by rival company Doosan Bobcat, asserting patent claims covering technologies used in loaders and excavators.
This Week on Wall Street
Merck Hopes to Bolster Cancer Pipeline Through 2040s With $6.7 Billion Terns Pharma Purchase – On Wednesday, March 25, U.S. pharmaceutical developer Merck announced plans to purchase clinical-stage biopharma company Terns Pharma for $6.7 billion, acquiring Terns’ experimental drug for treating chronic myeloid leukemia in a move that diversifies Merck’s cancer portfolio and its heavy reliance on sales of its blockbuster treatment Keytruda, which will lose major patent protections later this decade.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2024 are announcing quarterly earnings next week (2023 rank in parentheses):
- Monday: Nidec Corp. (171st)
- Tuesday: None
- Wednesday: BOE Technology Group Co., Ltd. (14th)
- Thursday: Nike, Inc. (104th)
- Friday: None